United States v. Clark
2011 CAAF LEXIS 187
| C.A.A.F. | 2011Background
- Appellant was convicted by general court-martial of attempting to communicate indecent language to a minor and using the Internet to transfer sexually explicit images, under Articles 80 and 134, UCMJ.
- Trial spanned opening statements and witness examinations in which trial counsel commented on Appellant’s demeanor and silence after being confronted with the accusation.
- Investigation began with an undercover Yahoo chat in which Appellant corresponded with a minor pretending to be a 13-year-old girl and sent explicit images.
- Appellant was detained, observed, and later interviewed by OSI after his rights were advised; he ultimately waived rights and admitted elements of the offenses.
- Notebook with the username 'thedude94_2000' was found near Appellant’s computer; DEERS identity confirmed, linking him to the online activity.
- The Military Judge overruled defense objection to rebuttal claims that Appellant’s silence evidenced guilt; the United States Court of Appeals for the Armed Forces reviewed whether this was plain error and harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether eliciting Appellant’s silence and demeanor and commenting on it in closing was plain error | US argued silence showed guilt via demeanor evidence and closing remarks were proper. | Clark contends such references violated Fifth Amendment rights and MR.E 304(h)(3). | Plain error; harmless beyond a reasonable doubt. |
| Whether the military judge violated Fifth Amendment rights by overruling objection to improper rebuttal | US asserts rebuttal appropriately responds to defense theory and is permissible fair comment. | Clark contends rebuttal improperly used silence as substantive evidence of guilt. | Constitutional error; harmless beyond a reasonable doubt. |
Key Cases Cited
- United States v. Alameda, 57 M.J. 190 (2002) (prohibits admission of post-apprehension silence as guilt evidence)
- United States v. Moran, 65 M.J. 178 (2007) (de novo plain error review for Fifth Amendment references)
- United States v. Gilley, 56 M.J. 113 (2001) (limits on using silence as substantive evidence; fair response concept)
- United States v. Robinson, 485 U.S. 25 (1988) (reference to silence may be allowed if responsive to claim)
- United States v. Cook, 48 M.J. 64 (1998) (demeanor evidence and relevance considerations)